Law must determine who’s a journalist before deciding if sources must be revealed

In her professional life, Shellee Hale wears many hats: She says she’s a business consultant, a certified life coach, an author and a psychic investigator. And, although she doesn’t work for any media organization, she also calls herself a “citizen journalist.”

That, she argues, is why she shouldn’t have to disclose her confidential source in a defamation case. Hale was being sued for comments she posted on an online bulletin board that accused a New Jersey company involved in the pornography industry of engaging in fraudulent practices. She claims the company threatened the life of her secret source, after that person divulged details about its operations.

Now, the state Supreme Court is faced with the question of whether she should be protected by New Jersey’s shield law, which guards journalists from having to reveal their secret sources and documents.

This law is vital to journalists. Freedom of the press would be curtailed if people were afraid to go to reporters with confidential information, because they knew the journalists could be forced to reveal their sources. Plenty of reporters have gone to jail to protect sources. And many abuses have come to light because of confidential tipsters: Watergate, Abu Ghraib, Walter Reed Army Medical Center, to name a few.

There are lots of responsible bloggers who do good journalistic work, and it’s important to extend the shield law to them. But here’s the dilemma: If we apply the shield law to everyone, prosecutors won’t be able to subpoena witnesses for trials. If you knew who committed a crime, for instance, all you’d have to do is run to Facebook and post it — then claim you’re a journalist, in order to avoid having to testify about how you got this information.

So the court needs to jump into a gray area and define who is a journalist.

Here’s what we suggest: Journalism should be viewed as a process, not a livelihood. Judges should use test factors to determine who is a journalist. They should consider not whether someone is a professional, or even reliable, reporter — that’s the purpose of defamation cases — but factors such as whether the intent was to gather information and publish it. Also, is the topic of public interest? What was the result of publishing the information? And what is the reporter’s past body of work?

A psychic investigator might not make the cut. But as Ronald Chen, vice dean of Rutgers Law School, puts it, “It should be a functional test, not a comparative one — not, ‘Are you like Clark Kent?’ ”